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Smt. Gulnar Begum & Ors. v. District Judge & Ors. - WRIT - C No. 26687 of 2004  RD-AH 558 (25 February 2005)
Civil Misc. Writ Petition No. 26687 of 2004
Smt. Gulnar Begum and others....................................Petitioners
District Judge, Aligarh and others...............................Respondents
Hon. S.N. Srivastava, J.
By way of this writ petition following reliefs were claimed:-
"(i) Issue a writ, order or direction to quash the entire proceedings of regular Misc. Case No. 84/2004 Syed Mohd. Sajid and others Versus Smt. Gulnar Begum and others pending in the Court of District Judge, Aligarh.
(ii) Issue a writ of certiorari quashing the order dated 9-4-2004 passed by District Judge, Aligarh in the aforesaid Misc. Case.
(iii) Issue a writ, order or direction in the nature of prohibition commanding the opp. Party not to proceed further in pursuance of the aforesaid misc. case.
(iv) Issue a writ, order or direction in the nature of mandamus commanding the Opp. Parties not to interfere with petitioners rights and interests over the land.
(v) Issue any other writ, order or direction which this Hon"ble Court may deem fit and proper under the circumstances of the case.
(vi) Award the cost of the petition to the above named petitioners."
From a perusal of record, it would appear that on 5.4.2004, an application of respondent under section 151 read with O. 21, R. 99 C.P.C. was registered as Misc. Case no. 84 of 2004 before the District Judge on ground that they were illegally dispossessed. On 7th April 2004, petitioners filed a preliminary objection as to maintainability of any such application. The Incharge District Judge passed an order on 9.4.2004 registering a case as case no. 84 of 2004 without considering the petitioners' objection. The District Judge heard case no. 84 of 2004 and fixed 7.4.2004 for judgment. On 28.4.2004, Abid Ali and another filed an application for impleadment on the ground that they were the tenants of the respondents and District Judge rejected their application. Transfer Application was also filed by respondents in June 2004 and proceedings before the District Judge, Aligarh were stayed on 4.6.2004. Shia Central Board of Wakf also filed writ petition no. 32184 of 2004 assailing the proceedings in Execution case no. 13 of 1984. The High Court dismissed that writ petition on 12.8.2004. Against the order-dated 9.4.2004 passed by Incharge District Judge registering a case, present writ petition has been filed.
Sri V.M.Zaidi, learned counsel has filed an application for impleadment on behalf of Shia Wakf Board. On 5.8.2004, this Court passed an order directing parties to maintain status quo.
On conjoint request of the learned counsel for the parties, the case was heard finally on several dates at prolix length.
Sri Ravi Kant, learned Senior Advocate assisted by Sri A.K.Mehrotra and Sri M.K.Gupta appearing for the Opp. Parties raised a preliminary objection as to maintainability of the writ petition and canvassed that writ of prohibition is not maintainable in the facts and circumstances of the case. In support of his proposition, reference has been made to case laws namely, 2004 JT Vol 6 425, and 2001 (43) ALR 215. He also canvassed that the District Judge was wholly incompetent to entertain any application pertaining to grant of lease and all further proceedings and orders relating to perpetual lease, execution of order and delivery of possession in favour of petitioners were without jurisdiction inasmuch as wakf Board alone Constituted under the Wakf Board Act 1960 is competent to pass any orders and no transfer or lease could be granted without approval of the wakf Board. The learned counsel further raised a question that the orders passed by District Judge to execute lease deed in favour of petitioners was void and hence he rightly filed application under section 151 C.P.C. read with Order 21, R. 99 C.P.C. to recall that order of the District Judge which is maintainable in law attended with further submission that it is the District Judge only who is competent to decide this question whether present proceeding is maintainable or not and writ petition against the said order dated 9.4.2004 registering a case and for quashing the entire proceedings initiated thereon, is not maintainable.
In connection with preliminary objection, Sri Ravi Kant elaborated his arguments urging that section 9 A of the U.P. Wakf board 1960 was introduced by U.P. Act No. 28 of 1971, the District Judge was incompetent to pass orders on the date of handing over possession in pursuance of earlier order. If it be assumed that order 21 R. 99 C.P.C. is not applicable to the application of the Opp. parties, this application was fully maintainable under section 151 C.P.C. and in connection with his arguments, he made reference to certain case laws, namely, 1967 SC 1388, 1961 SC p 272, 1995 Vol. 4 SCC 742, AIR 1996 Alld 389, 1990 Alld page 12 and 1974 Alld page 275. The learned counsel for respondents relied upon decision in U.P. Avas Evam Vikas Parishad v. State of U.P. (2003 Z(43) ALR 215) and Swetambar Sthanakwasi Jain Samiti and another v. Alleged Committee of Management , Sri R.J.I. College Agra and others (1996 (3) SCC 11). Sri Ravi Kant thus canvassed that the case-law relied upon by the learned counsel for the petitioners in Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 SCC 1 is unavailing inasmuch as the action of the statutory authority was under challenge in that and not the judicial authority and hence it is of no assistance to the case of the petitioner. He further canvassed that proceedings before the District Judge was without jurisdiction and a nullity and therefore application under section 151 C.P.C. was rightly filed to set aside the said orders which is maintainable and it is only the District Judge who has jurisdiction to adjudicate upon all the questions and not the High Court in exercise of its extra-ordinary jurisdiction under Article 226/227 of the Constitution of India.
Per contra, in reply to the arguments on preliminary objection, Sri V.K.S.Chaudhary learned Senior Advocate emphatically submitted that the District Judge was fully competent under law to pass orders in the matter of execution of perpetual lease of a wakf under paragraph 208 of the Muslim law according to which earlier, Qazi was competent to grant such permission in the interest of the wakf and its beneficiary and same power has been assigned to District Judge. He further emphasized that there was no provision of the U.P. Wakf Board Act extending coverage of wakf Alal-Aulad on the date of the orders dated 27.10.1960 and 20.2.1960 or order dated 8.10.1966 and the relevant provision of the U.P. Waqf Board were made applicable to that effect came to be engrafted by U.P. Act no. 28 of 1971 and therefore, has no application to the present case. He reiterated his argument that the District Judge had power under paragraph 208 of the Muslim Law by which earlier Qazi was competent to pass the order in the matter of wakf but now Qazi came to be replaced by District Judge and the District Judge was the only competent authority to pass order dated 27.10.1960 permitting Mutawalli on his application to execute lease deed of plot no. 341. It is further submitted that the respondent's mother Mehrunnisa filed applications 17.12.1964 and 17.8.1966 to the District Judge to grant perpetual lease of plot no. 341 in her favour but the District Judge after hearing the parties did not accede to the prayer of the mother of the Opp. Parties and passed an order directing to settle perpetual lease by auction. This judgment dated 8.10.66 was executed and auction was held in which Noor Ilahi predecessor in interest of the present petitioners was the highest bidder and the District Judge passed an order to grant perpetual lease in favour of Noor Ilahi which was executed subsequently in favour of the petitioners by the District Judge on request of Mutawalli of Sunni Waqf and were also handed over possession. He further urged that under section 36 C.P.C. orders passed by District Judge are executable like a decree and the contesting respondents have no right to move such application inasmuch as their grand mother and brother had litigated the matter in a number of suits and in present proceedings of execution of lease and met their water-loo and now the property is in possession of petitioners and the provisions of Order 21 Rule 99 C.P.C. or under section 151 C.P.C. are not available to respondents who are in position of judgment debtors and present application of respondent was not maintainable as contesting respondents were not in possession and it was in possession of Sunni Wakf Board and petitioners are not aggrieved persons and their application was not maintainable and writ petition was rightly filed. Sri V.K.S.Chaudhary further urged that respondents are claiming themselves to be beneficiaries of Sughra Begum Shia Wakf. Admittedly, the property i.e. plot no. 341 is a wakf property of Sunni Wakf. He further clarified that plot no. 347 which was leased out to grand-mother of respondents was also a property of Sunni Wakf, but the lessee's created a Waqf namely, Sughra Bibi Wakf which is a Shia wakf and they have no right at all to lay claim to the property, which is altogether different property in question. The learned counsel pointed out that the grand mother of respondents lost suit No. 297 of 1942 on 22.9.1942; the respondents' predecessors lost another suit No. 149 of 1952 too on 18.5.1954 and handed over possession of property in dispute in execution of decree to Sunni Wakf which was part of Plot No.341. He further submitted that the area of plot no. 341 is 1528 sq. yards as eloquent from Amin's report and other documents on record and it was rightly given in possession of petitioners. It is stated by the learned counsel that prior approval of the Wakf Board was not required for execution of lease deed which was executed in favour of petitioners in execution of order passed on 22.10.1960 and 10.8.1966 much prior to U.P. Amendment of 1971 in the Wakf Board Act 1960. The learned counsel for the petitioner also relied upon case law reported in AIR 1974 Alld 124 and submitted that the application of Opp. parties was not maintainable in law and the writ petition for quashing the entire proceeding and the impugned orders for issuing a writ of prohibition is fully maintainable. He also relied upon AIR 1977 SC 2421 (Paras 6 and 7, 1998 SCC (Vol. 8) p 88, AIR 2000 All. P 58, 1966 AWC p. 925, 2002 ALJ p 2475 (D.B.) (Para 20), 2002 ALJ 2275 (Paras 28,30) 1988 AWC p 537 in support of his contentions. He reiterated that the U.P. Wakf Act 1960 was not applicable to the Wakf Alal Aulad and it was for the first time made applicable to the Wakf Alal-Aulad and section 9-A was introduced by which wakf Alal Aulad was also included in the year 1971. Therefore, the order passed by the District Judge for allotment of property no. 341 on 20.10.1960 was a valid order and the same cannot be execrated as nullity or void ab initio. He also pointed out that the order was initially passed on 20.10.1960 and consequent upon the application moved by mother of the contesting Opp. Parties, the matter was finally decided and the District Judge directed to settle the perpetual lease by auction. The matter was finally decided between the parties and after the auction was held, the District Judge rightly passed orders in favour of the highest bidder i.e. predecessor-in-interest of the petitioner to grant perpetual lease which was granted to him. It is further submitted that perpetual lease was already executed by the District Judge On 5.11.1982 and therefore, the contesting Opp. Parties being the descendants of the judgment debtor cannot maintain this application under O. 21 Rule 99 C.P.C. and section 151 C.P.C. It is also submitted that since the possession was already with the Sunni wakf, the District Judge rightly directed the court Amin in execution of his orders to handover possession to lessee of perpetual lease already executed. It is next contended that there is no dispute of facts in the present case and the defendants are claiming rights on the basis of their lease executed on 6.2.1935 in favour of grand-mother of the petitioner over plot no. 347 and that perpetual lease was executed in favour of the petitioners in relation to plot no. 341 and they would not have any right over the plot no. 341 and hence title is not within the domain of dispute at all. It is argued that if respondents claim themselves to be judgment debtor, they should have approached execution court in proceedings at appropriate stage under the C.P.C. envisaged for the judgment debtor. The submission further proceeds that if they are not claiming themselves to be judgment debtor and have staked claim on the basis of their independent rights, as in case a third party/stranger is dispossessed from any land he may file application to get his rights executed under appropriate provisions in execution of proceeding under the Civil Procedure Code. In any case, the submission proceeds, application under section 151 is not maintainable and writ of certiorari to quash the order as well proceeding registered on the basis of the said application was liable to be quashed.
After hearing the learned counsel for the parties and considering the materials on record, I now proceed to analytically examine the respective contentions made across the bar.
In this regard paragraph 7 of the affidavit filed in support of the recall application to order dated 28.7.2004 was also referred to which being is being quoted below.
"7. That the said land in fact belongs to waqf Sugra Begam of which answering respondents are the beneficiaries."
Both the counsels for the parties have copiously cited decisions in aid of their respective contentions, which shall be dealt with in the latter part of this judgment. However, in the perspective of the arguments advanced across the bar, the following preliminary question surfaces for consideration and determination in the present case.
"Whether writ petition is maintainable against the order registering a case on the application of the contesting Opp. Parties under Order 21 R. 99 C.P.C. read with section 151 of the C.P.C. pending before District Judge."
An allied question to the preliminary objection which the learned counsel for the parties insisted to decide alongwith preliminary objection is "Whether the District Judge is competent to pass orders for grant of perpetual lease and its execution."
Before dealing with the above questions, it would be appropriate to discuss the facts forming background to the present case. It would appear that respondent Nos. 2 and 3 Syed Mohd Wajid Hasan and Sajid Hasan filed an Application No. 84 of 2004 before District Judge, Aligarh with the prayer to quash entire proceeding and decision in Misc. Case No.95 of 1960 Syed Misbahur Rehman, applicant followed by Misc. Case No. 107 of 1980, Noor Ilahi thereafter, respondents Mazhar Ilahi thereafter respondents Smt. Gulnar Begum and others v. Misbanur Rehman and consequently Execution Case No. 13 of 1984 Mazhar Ilahi thereafter Smt. Gulnar Begum and others, V. Misbahur Rehman thereafter respondents Mehboodur Rehman of this Court, be quashed and possession of applicants over the property described at the foot of the application be restored. As consequential relief, it was prayed that the unlawful possession of building causing loss to the extent of Rs. 50 lakhs due to demolition and recurring loss of Rs. 20,000/- per month be ordered to be undone. Boundaries of the property in question, which is a constituent of Kothi Mehmood Manzil, situate at Dodhpur, Aligarh, admeasuring 1582 Sq. Yards as shown in map Annexure 1) are enumerated as under.
East - Kothi Mehmood Manzil
West - Road,
North - Property of Sabir Raza Khan,
South - Property of Wahidul Haque Siddiqui.
Petitioners filed this writ petition for the relief of a writ of certiorari to quash entire proceedings in Regular Misc. Case No. 84 of 2004 Syed Mohd. Sajid Hasan and others Vs. Smt. Gulnar Begum and others and the order dated 9.4.2004 passed by the Incharge District Judge, Aligarh and further for the relief of a writ of prohibition commanding Opp. Parties not to proceed and mandamus not to interfere with the petitioners' right and interest over the land in dispute.
The case is interspersed with chequered history. Petitioners are Sunnis and contesting respondents belong to Shia sect. It is explicit from the record that Plot No. 341 measuring 1582 Sq. Yards and Plot No. 347 admeasuring four bighas situated in Village Dodhpur, District Aligarh are properties of Sunni Waqf, Dodhpur, District Aligarh. On 11th February, 1935 a perpetual lease was executed by Mutwalli-Syed Anwarul Rehman of Sunni Waqf Dodhpur, Mauja Dodpuer Mafi, Pargana and Tahsil Kole, District Aligarh in favour of Mst. Syeda Siddique Fatima, grand-mother of Respondents for constructing a Kothi on 4 Bighas land which includes Plot Nos. 215/1, 1 Bigha 5 Biswa, 218/1 10 Biswas, 320/1 19 Biswas, 240/1 1 Bigha 6 Biswa. These plots were renumbered as Plot No. 347. It is further explicit from the record that Suit No. 297/1942 filed by Sunni Waqf through Mutawalli for recovery of possession of Plot No. 341 measuring 913 Sq. yards encroached by Syeda Siddique Fatima was decreed on 22.9.1942 and possession was actually handed over to Mutwalli on 9.10.1946 in execution proceeding. Mst. Syeda Siddique Fatima alongwith her son Mohd. Ahmad Hasan again took unlawful possession and raised a Kachcha Ghooras on a part of the land in dispute. Another Suit No. 149/1952 was filed by Mutwalli of Sunni Waqf Dodhpur against Mst. Syeda Siddique Fatima and Syed Mohd. Ahmad Hasan for removing Ghooras and other constructions raised over a part of the land in dispute and for restraining them from interfering in future with the possession over Plot No. 341. The said Suit No. 149/1952 filed by Mutwalli was decreed on 13.5.1954 mandating removal of defendants' Ghooras and other constructions from the land in dispute-a part of present land in question. Civil Appeal Nos. 262 of 1954 and 313 of 1954, which came to be preferred against judgment-dated 13.5.1954 culminated in dismissal vide judgment-dated 20.10.1955. The Execution Case No. 26 of 1960 filed for executing decree ended up in rejection pursuant to a compromise, which was proved to be a forged one. Civil Misc. Appeal No. 166 of 1961 filed by Sunni Waqf was allowed by order-dated 4.5.1962. The High Court disposed of Execution Second Appeal no. 2596-1963 on 8.8.1963 in terms of the undertaking of judgment debtor-Syed Mohd. Ahmad Hasan and possession was actually delivered on 10.7.1964 to the Sunni Waqf.
It is clear from the record that an application by Mutwalli Mishabul Rahman of Sunni Waqf was filed before the District Judge for permission to lease out Plot No. 341 to Syed Hashmat Ullah on 27.10.1960 pursuant to which District Judge granted permission to Mutawalli to execute lease. Mst. Mehrunnisa, the wife of Syed Mohd. Ahmad Hasan and mother of Syed Wajid Hasan and Syed Sajid Hasan, respondent nos. 2 and 3, consequently moved an application on 17.12.1964 before District Judge Aligarh to execute lease of Plot No. 341 to her. Sunni Waqf filed an application on 1.6.1965 for changing name of original lessee. Syed Hashmat Ullah and Mst Mehrunnisa, mother of respondent Nos. 2 and 3 also filed another application on 17.8.1966 for grant of lease of Plot No. 341 in her favour. On 20.8.1966, the District Judge directed Amin to submit report, which was accordingly submitted. An objection was filed by Mutawalli of Sunni Waqf to the application of Mehrunnisa objecting lease being granted to her. The District Judge directed to hold auction to grant perpetual lease of Plot No. 341 by the order dated 8.10.1966 and application of Mehrunnisa to grant lease to her was rejected. On 25.2.1967, auction was held. In auction, Noor Ilahi was the highest bidder. By order dated 8th April 1967, the District Judge passed an order to execute perpetual lease in favour of highest bidder (Noor Ilahi). On 11th Dec. 1969, Noor Ilahi filed an application before the District Judge Aligarh with prayer to issue direction to Mutawalli of Sunni Wakf to execute perpetual lease. By an order dated 9th Dec 1972, the District Judge Directed Mutawalli to execute lease and deliver possession to Noor Ilahi. The Mutawlali took no exception to the order directing to execute the lease in favour of Noor Ilahi. On 20th Nov 1980, Noor Ilahi filed an application before the District Judge Aligarh to execute perpetual lease to him through court and he may be given possession. The District Judge allowed his application and passed an order to execute lease in favour of Noor Ilahi by the Court. On 9th Jan, 1981, Noor Ilahi breathed his last and his son Mazhar Ilahi and widow Smt. Salma Begum were brought on record in the proceeding before the District Judge. On 30th Dec 1982, Smt. Salma Begum also died. Thereafter, the District Judge by an order dated Ist Sept 1983, executed perpetual lease in favour of Mazhar Ilahi with map attached to the lease deed specifying therein boundaries. On 19th August 1982, Mazhar Ilahi filed an application seeking possession over plot no. 341 in pursuance of lease registered in execution case no. 13 of 1984 and also filed an application on 24th Nov 1984 under O. 21 R. 10 C.P.C. for delivery of possession pursuant to the lease and District Judge issued Parwana for delivery of possession in favour of Mazhar Ilahi. Mazhar Ilahi also died on 11th April 1987. He was also substituted by Smt. Gulnar Begum, his widow, shireen Begum, daughter and Qamar Ilahi son.
It would appear from the record that O.S No. 391 of 1995 was filed by Syed Mohd. Ahmad Hasan as Mutawalli of the Wakf Sugra Begum Shia wakf against Gulnar Begum for permanent injunction relating to plot no. 341 before Civil Judge (J.D.). The said suit was dismissed as withdrawn. Shia Wakf Sugra Begum through Mutawalli Sri Syed Mohd. Ahmad Hasan, elder brother of the respondents 2 and 3 filed an objection in Execution Case no. 13 of 1984 under section 47 C.P.C. on the ground that the District Judge had no power to execute perpetual lease and also filed a writ petition no. 41989 of 98 through Sri V.M.Zaidi Advocate assailing the execution proceeding. This Court stayed proceeding in execution case no. 13 of 1984, but this was also dismissed. The names of the petitioners were already mutated over whole of plot no. 341.
The first question arises to be considered is whether the present writ petition praying for issue of writ of certiorari quashing the order dated 9.4.2004 and the entire further proceedings pursuant thereto as well as writ of prohibition directing the District Judge not to proceed with the same is maintainable and whether the same has the complexion of preliminary objection. Sri Ravi Kant learned Senior Advocate placed credence on a decision of the Apex Court in Thirumala Tirupati Devasthanams and another v. Thallappaka Ananthacharyulu and others (JT 2004 (6) SC 426) and paragraphs 18, 19 and 20 being germane according to his stand-point are quoted below.
"18. On the basis of the authorities it is clear that the Supreme Court and the High Courts have power to issue writs, including a writ of prohibition. A writ of prohibition is normally issued only when the inferior court or tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in violation of rules of natural justice, (c) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act in contravention of fundamental rights. The principles, which govern exercise of such power, must be strictly observed. A writ of prohibition must be issued only in rarest of rare cases. Judicial disciplines of the highest order has to be exercised whilst issuing such writs. It must be remembered that the writ jurisdiction is original jurisdiction distinct from appellate jurisdiction. An appeal cannot be allowed to be disguised in the form of a writ. In other words, this power cannot be allowed to be used "as a cloak of an appeal in disguise". Lax use of such a power would impair the dignity and integrity of the subordinate court and could also lead to chaotic consequences. It would undermine the confidence of the subordinate court. It was not even argued that there was total lack of jurisdiction in the civil court. It could not be denied that the civil court, before which the suit was pending, had powers to decide on the maintainability of the suit and to decide on questions of its jurisdiction. The civil court had jurisdiction to decide whether the suit was barred by section 14 of the said Act or on principles of res judicata/estoppel. Thus unless there was some very cogent or strong reason the High Court should not have prevented the court of competent jurisdiction from deciding these questions. In other words the High Court should not usurp the jurisdiction of the civil court to decide these questions. In the impugned judgment no reason, much-less a cogent or strong reason, has been given as to why the civil court could not be allowed to decide these questions. The impugned judgment does not state that the civil court had either proceeded to act without or in excess of jurisdiction or that it had acted in violation of rules or natural justice or that it had proceeded to act under law which was ultra vires or unconstitutional or proceeded to act in contravention of fundamental rights. The impugned judgment does not indicate as to why the High Court did not consider it expedient to allow the civil court to decide on questions of maintainability of the suit or its own jurisdiction. The impugned judgment does not indicate why the civil court be not allowed to decide whether the suit was barred by virtue of section 14 of the said Act or on principles of res judicata/estoppel. To be remembered that no fundamental right is being violated when a court of competent jurisdiction is deciding, rightly or wrongly, matters before it.
Likewise paragraph 19 being also relevant is excerpted below.
"19. Faced with this situation Mr. Mishra submitted that in the written statement filed by the respondents it had been contended that the suit was not maintainable and was barred on principles of res judicata/estoppel. He submitted that in spite of these points having been urged before the civil court an interim injunction restraining the respondents from alienating the suit lands had been issued. He submitted that the civil court thus exercised jurisdiction when it clearly had no jurisdiction. He submitted that it was under these circumstances that the respondents filed writ petition before the High Court. On this submission Mr. Venugopal also pointed out that the respondents had filed an appeal against the order granting interim injunction. It was pointed out that the appeal is also dismissed holding prima facie that the suit was maintainable. Mr. Mishra could not deny these facts. These facts indicate how chaotic a result has prevailed by grant of the writ of prohibition. The impugned judgment prohibits the civil court from proceeding with the suit. Thus the suit will lie on the dormant file of the civil court indefinitely. However, the interim injunction granted by the civil court, as affirmed by the appellate court, will continue to operate. To be remembered that in the impugned judgment there is no reference to these orders and no writ of certiorari has been issued quashing those orders. The end result would be that the suit cannot proceed yet the respondent will continue indefinitely to be restrained by the interim order. Faced with this situation Mr. Mishra submitted that this court in exercise of its power should quash the interim order. Mr. Mishra submitted that this was the equitable and correct course to be followed by this Court. He submitted that this Court should not interfere with the impugned order as it would be futile to force the respondents to undergo a full round of litigation for a second time when all questions of title were already decided in the earlier round of litigation.
Paragraph 20 of the self-same decision being also relevant is quoted as under:
"20 We have considered the rival submissions. It is not possible to accept Mr. Mishra's submission that this Court should quash the interim orders. Those orders are not before this Court and this Court cannot blindly quash orders passed by courts of competent jurisdiction without even looking into the orders. Even presuming, without so holding, that the suit is not maintainable by virtue of section 14 of the said Act or on principles of res judicata/estoppel, in our view, the High Court should have permitted the civil court, which was competent to decide these questions to do so. At the most the High Court could have directed the civil court to decide these issues as preliminary issues. In our view the correct course is to set aside the impugned judgment and direct the civil court to decide the question of maintainability of the suit in view of section 14 of the said Act and/or its jurisdiction to entertain the suit as also the question whether the suit is barred by principles of res judicata as preliminary issues. We see no substance in the apprehension that in deciding the preliminary issues the civil court will not keep in mind judgments of this Court (set out therein above) pertaining to maintainability of the suit once patta is granted under the said Act. Undoubtedly the civil court would see whether in effect the suit is for purposes of setting aside or modifying the decisions taken in the earlier round of litigation.
From the material on record, it is clear that the plot nos. 341 and 347 belonged to the Sunni Wakf Board and contesting respondent's mother was granted perpetual lease in the year 1935 regarding plot no. 347. It is further borne out from the record that when the application was filed by the contesting Opp. Parties under section 151 C.P.C. before the District Judge, a preliminary objection was raised by the petitioners about maintainability of this application and on the date on which impugned orders were passed of registering application as Misc. application no. 84 of 2004, Syed Mohd. Sajid v. Smt. Gulnar Begam it was noticed that objection was already there and it was noted but yet preliminary question was not decided by the Incharge District Judge. As preliminary objection was already there before the impugned order was passed, the Incharge District Judge acted illegally by not deciding the preliminary objection on merits though he noted the preliminary objection. It would further appear that the case law relied upon by the learned counsel for the petitioner about maintainability of the writ petition is unavailing inasmuch as Incharge District Judge failed to exercise jurisdiction in not deciding the preliminary objections. Further from a perusal of paragraphs 18 to 20 of the case law it is explicit that Apex Court was of the opinion that High Court should have directed the civil court to decide the issue as preliminary issue, but in the present case no suit is pending but respondents are trying to reopen the proceedings which have already attained finality between the parties or their predecessors several years b ck by way of an application under section 151 C.P.C.
The materials on record further establish that the grand-mother of respondents fought the matter in several litigations mentioned above and mother of the respondents prayed for allotment of Plot No.341 but her application was finally rejected after considering the objection of the Mutwalli of Shia Waqf Board and the District Judge directed to settle the disputed land by auction. The matter was finally settled in favour of the predecessors of the petitioners. The order passed by the District Judge on the application of Respondents' mother for allotment of Plot No. 341 became final by the order dated 8.10.1067 rejecting application of Mehrunnisa mother of Respondent nos. 2 and 3 dated 17.8.1966. The mother of Respondents did not challenge the order dated 8.10.1967, the auction dated 25.2.1967, order of District Judge, dated 8th April, 1967 directing to execute perpetual lease settled in favour of Noor Ilahi-highest bidder and the order dated 9th December, 1972 directing Mutwalli to execute lease and hand-over possession of the land in dispute to Noor Ilahi or the order dated 1st September, 1983 passed by District Judge executing lease of Plot No.341 in favour Mazhar Ilahi, son of Noor Ilahi pursuant to the map attached thereto. The matter of allotment and execution of perpetual lease became final and it is not open to the Respondents to move any application now to recall those orders after such a long time. The application filed by Respondents is not maintainable. Besides, it is barred by limitation also. As mother of Respondents did not choose to challenge those orders or its execution at any stage, now it is not open to the Respondents to move any such application. Mehrunnisa Mother of Respondents was judgment-debtor and Respondents claim their rights as successor of Mehrunnisa. Order passed by the District Judge and the further proceedings for execution of those orders became final, any application of Respondents purported to have been filed under Section 151 of C.P.C. after such a long time to re-open the whole controversy again is not maintainable. The law is well enunciated that proceeding of Section 151 of C.P.C. is not available to a person if he could have availed any other remedy available to him under the other provisions of C.P.C. Under the law Respondents being successors of Mehrunnisa-judgment-debtor could have maintained application within the prescribed period of limitation at the appropriate stage and not at this stage.
It was further urged that respondents were dispossessed by the impugned order and possession was handed-over in pursuance of the order of the District Judge to the lessees of Plot No. 341 and as such they could maintain the same. Besides the title of the Sunni Waqf Board had already been finally decided in different suits and the grand-mother and mother of the Respondents had lost all the suits and proceedings. Their rights have already been determined and it was held that they had no right at all on any part of Plot No. 341. As Respondents' predecessors contested and lost all the suits and proceedings for allotment and execution of lease, they cannot be treated to be trespasser and could only be said to be a judgment-debtor. Any application filed by Opp. Parties is not maintainable in the eye of law.
Moreover, the case laws relied upon by the learned Counsel for the petitioners i.e. 2002(4) SCC p 388 (paragraph 109) and 1998 (9) SCC I, make it clear that certiorari lies to bring decisions of an inferior court, tribunal public authority or any other body of the person before the High Court in appropriate case. In 1994 (3) SCC 357, the quintessence of what has been held by the Apex Court is that when patent lack of jurisdiction is made out, writ of prohibition shall issue. The above view finds its echo in 1955 (1) Supreme Court Report page 250, 1954 SC 440 as well. This view also receives reinforcement from a Seven Judge Bench decision in 1962 SC 1623 at page 1625. The decision rendered in 1976 (1) SCC page 70 makes it clear that in order to obtain writ of prohibition absence of jurisdiction on the part of the officer or authority complained against must be there. As both the parties are claiming their rights over different properties and Opp. Parties have no claim as to plot no. 341, the objections made by the contesting, Opp. Parties cannot be sustained as against plot no. 341. The only question they could raise is whether possession of plot no. 341, which was given by the order of the District Judge in execution of its order to execute perpetual lease, could consist of any part of plot no. 347. So far as plot no. 341 is concerned, as contesting Opp. parties are not claiming any rights, the writ of certiorari quashing the proceedings in so far as plot no.341 is concerned and also writ of prohibition could be issued by this Court in the facts and circumstances of the case.
All the case laws relied upon by learned counsel for Respondents relates to the pending suits. In the present case no suit is pending. Respondents claim that the application purported to have been filed under Section 151 of C.P.C. should be decided by the District Judge. It has already been held that such application is not maintainable by the contesting-Respondents. All the earlier suits and proceedings have already been decided determining rights of the parties and it was held that contesting-Respondents or their predecessors have no right at all in Plot No.341. Trial or re-trial of an application filed under Section 151 of C.P.C. before District Judge, in the circumstances of the case, is unwarranted in law and as such this Court does not agree with the arguments raised by Sri Ravi Kant, learned Senior Counsel for Respondents. All these questions were raised by learned counsel for petitioner even before registering the case by preliminary objections and were not dealt with by the Incharge District Judge.
In view of the above, none of the decisions cited across the bar about maintainability of writ petition which have been extensively surveyed in the instant petition are unavailing to the petitioner and in view of the fact that preliminary objections were raised but not decided before registering the case, this Court is fully competent to look into the matter.
Now I descend to second question for consideration whether the order passed by the District Judge is a nullity and without jurisdiction or orders were rightly passed by the District Judge in accordance with law and the order is executable as decree of civil court. From a perusal of the materials on record and the laws relating to the wakf, it is clear that the District Judge has power under paragraph 208 of the Muslim law which runs as follows-
"Paragraph 208 of the Mulla principles on Muslim law.
Procedure recognized by the court has been that the District Judge or High Court in exercise of original civil jurisdiction exercises power of Qazi and in exercise of that power, is competent to grant permission of transfer to the wakf board on an application only and no suit is necessary for such permission."
The contention is also without substance inasmuch as permission was granted on 27.10,1960 and on an application of Mutawalli of Sunni Waqf namely, Misbahul Rehman, orders were passed by the District Judge on 27.10.60 to execute lease and the order passed on 17.12.1964 by the District Judge after considering application moved by the mother of contesting respondents namely Mehrunnisa to grant lease of plot no. 341. Further orders dated 1.6.65 and orders dated 17.8.66 passed on the application of mother of the respondents, order dated 8.10.66 passed by the District Judge after considering the application of mother of respondent and the objections on the application of Mutawalli of petitioner Sunni wakf directing to settle lease for perpetual lease by auction. All the orders passed by the District Judge were passed as civil court and the District Judge executed perpetual lease in favour of petitioner's husband on 9.12.1972 which was actually given effect to on the spot by handing over possession by order dated 29.8.1981 and actual possession was delivered on 20.3.2004. From a perusal of the record it transpires that there was already adjudication of rights of the parties to which the mother of respondents 2 and 3 was a party and her application was not accepted for granting lease on plot no. 341 and civil court after hearing both the parties directed to auction the same. In auction the matter was settled in favour of petitioners. In these circumstances, in case the respondents are claiming themselves any right on plot no. 341 they could be considered as judgment debtor being descendants of Mehrunnisa mother of respondents 2 and 3 and as such application under section 151 C.P.C. to recall that order is not maintainable. In the present case, the defendants who are in a position of judgment debtor did not file any objection in the execution proceeding such application is not maintainable. It is not seriously contended by Sri Ravi Kant that Order 21 Rule 99 is applicable and he urged that application could be filed under section 151 C.P.C. in view of the above discussion.
In view of the above, it was not permissible for the Incharge District Judge by means of the impugned order to direct to register the case and to reopen the whole matter under section 151 C.P.C.
In the conspectus of above discussion, writ petition is held to be maintainable and preliminary objection is accordingly decided. In so far as allied question is concerned, it is held that Incharge District Judge is wholly incompetent to pass order. Application preferred by Shia Wakf for impleadment in the present case which relates to plot no. 341 is also held not maintainable and is accordingly rejected inasmuch as plot no. 341 being one pertaining to Sunni Wakf, they could not claim any right thereon.
The learned counsel for the parties shall be at liberty to raise any point on merits tomorrow.
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